(2.) When the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case.

10. Agreement to sell at valuation.-(1.) Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and such third party cannot or does not make such valuation, the agreement is avoided; provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor.

[(2.) Where such third party is prevented from making the valuation by the act or default of the seller or buyer, the party not in default may maintain an action for damages against the defaulting party.]

Conditions and Warranties.

11. Implied condition or warranty may be expressly excluded. Where a condition or warranty arises in a contract of sale by implication of law, it may be negatived or varied by express agreement.

12. Stipulations as to time of payment-(1.) Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale.

(2.) In a contract of sale "month" means primâ facie calendar month.

13. Contract of sale may be accompanied by warranty.—(1.) A contract of sale may be accompanied by one or more warranties, express or implied, given by the seller to the buyer.

(2.) A warranty may be either included in the contract of sale, or may be given after the contract of sale is completed.

(3.) Where a warranty is given after the contract of sale is completed, it must be supported by fresh consideration.

14. Buyer may treat condition as warranty.-(1.) Where a contract of sale is subject to any condition for the benefit of the buyer, the buyer may elect to treat the non-performance of such condition as a breach of warranty, and not as a ground for repudiating the contract.

(2.) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract.

(3.) Where a contract of sale is not severable, and the buyer has accepted part performance of the contract, a breach of any condition on the part of the seller can only be treated by the buyer as a breach of warranty.

15. Implied warranty of title. By a contract of sale the seller impliedly [undertakes that he has the] right to sell the goods, unless the circumstances of the sale or agreement to sell are such as to show that the seller is transferring [or agreeing to transfer] only such property as he may have in the goods.

16. Sale by description. Where there is a contract for the sale of goods by description, [there is an implied condition that] the goods shall correspond with the description; and if the sale be by sample, it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description.

17. Rule of caveat emptor. Subject to the provisions of this Act and of any statute in that behalf, there is no implied [undertaking as to] the quality, fitness, or condition of goods supplied under a contract of sale. Except that-

Implied warranties of quality, fitness, or condition. (1.) An implied [undertaking as to] quality, fitness, or condition may be annexed by the usage of trade. (2.) Where the buyer, relying on the seller's skill or judgment, orders goods for a particular purpose known to the seller, and the goods are of a

description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied [undertaking] that the goods shall be reasonably fit for such purpose [provided that in the case of a contract for the sale of an article of a well-known ascertained kind, there is no implied undertaking as to its fitness for any particular purpose].

(3.) Where goods are ordered by description from a seller who deals in goods of that description (whether he be the manufacturer or not) and the buyer has no opportunity of examining the goods, there is an implied [undertaking] that the goods shall be of merchantable quality and condition.

(4.) Where there is a contract for the sale of goods by a manufacturer, as such, there is, in the absence of any trade usage to the contrary, an implied undertaking that the goods are of the seller's own manufacture. (5.) An express condition or warranty does not negative a condition or warranty implied by this Act, unless inconsistent therewith.

Sale by Sample.

18. Sale by sample.--(1.) A contract of sale is a contract for sale by sample when there is a term in the contract, express or implied, to that effect. The exhibition of a sample during the making of the contract does not of itself make it a contract for sale by sample.

(2.) In the case of a contract for sale by sample

(a.) There is an implied [undertaking] that the bulk shall correspond with the sample in quality and condition.

(b.) There is an implied [undertaking] that the buyer shall have a reasonable opportunity of comparing the bulk with the sample.

(c.) There is an implied [undertaking] that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on inspection of the sample.

PART II. EFFECTS OF THE CONTRACT,

Transfer of Property as between Seller and Buyer.

19. Goods must be ascertained. Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained.

20. Property passes when intended to pass.—(1.) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(2.) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.

21. Rules for ascertaining intention. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.

Rule 1.-Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.

Rule 2.-Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done.

Rule 3.-Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do

some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done. "sale or

Rule 4.-When goods are delivered to the buyer on approval or on or other similar terms the property therein passes to the

return " buyer:(a.) Where he signifies his approval or acceptance to the seller [or does any other act adopting the transaction].

(b) If he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.

Rule 5.-(1.) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.

(2.) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.

22. Reservation of right of disposal—(1.) Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.

(2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is primâ facie deemed to reserve the right of disposal.

(3.) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance of the bill, the buyer is bound to return the bill of lading if he does not accept the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him.

23. Risk primâ facie passes with property. Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyer's risk whether delivery has been made or not.

Provided that where delivery has been delayed through the default of either buyer or seller the goods are at the risk of the party making default [as regards any loss which would not have occurred but for such default].

Provided also that nothing in this section shall be deemed to affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party.

Transfer of Title.

24. Sale by person not the owner.—(1.) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the

owner of the goods is by his conduct precluded from denying the seller's authority to sell.

(2.) Provided also that nothing in this Act shall affect—

(a.) The provisions of the Factors' Acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof;

(b.) The validity of any contract of sale under any special common law, or statutory power of sale, as in the case of a sale by a pawnee, distrainor, sheriff, master of a ship, or person selling under the order of a court of competent jurisdiction.

25. Market overt.—(1.) Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods provided he buys them in good faith, and without notice of any defect or want of title on the part of the seller.

(2.) Nothing in this section shall affect the provisions of this Act relating to the sale of horses.

26. Sale under voidable title. Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods provided he buys them in good faith, and without notice of the seller's defect of title.

27. Reresting of property in stolen, &c., goods on conviction of offender. [Cf. 24 & 25 Vict. c. 96. s. 100.] Where goods have been stolen, or otherwise wrongfully obtained, from the person who was the owner thereof by means amounting to an offence under the Larceny Act, 1861, and the offender is prosecuted to conviction, the property in the goods so stolen or wrongfully obtained thereupon revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with theni, whether by sale in market overt, or otherwise.

28. [52 & 53 Vict. c. 45. s. 8.]—(1.) Where a person, having sold goods, continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him of the goods or documents of title under any sale, pledge or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same.

[52 & 53 Vict. c. 45. s. 9.] (2.) Where a person having bought or agreed to buy goods, obtains with the consent of the seller possession of the goods or the documents of title to the goods, the delivery or transfer, by that person or by a mercantile agent acting for him of the goods or documents of title, under any sale, pledge or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.

(3.) The provisions of this section shall be construed with and subject to the provisions of the Factors Acts.

29. Effect of writs of execution. [29 Car. 2. c. 3. s. 15.]—(1.) A writ of fieri facias, writ of attachment, or other writ of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ is delivered to the sheriff to be executed; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the day, month, and year when he received the same.

[19 & 20 Vict. c. 97. s. 1.] Provided that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable

consideration, unless such person had at the time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached, had been delivered to and remained unexecuted in the hands of the sheriff.

(2.) In this section the term "sheriff" includes an under-sheriff, coroner, and the deputy or agent of any such officer.

PART III. PERFORMANCE OF THE CONTRACT.

30. Duties of seller and buyer. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.

Unless otherwise

31. Payment and delivery are concurrent conditions. agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.

32. Rules as to delivery.—(1.) Unless otherwise agreed, it is the duty of the buyer to take possession of the goods; and the seller's duty to deliver the goods is satisfied by his affording to the buyer reasonable facilities for taking possession of the goods at the place where they are at the time the contract of sale is made, or in the case of goods to be manufactured, at the place of manufacture.

(2.) Where, under the contract of sale, the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. What is a reasonable time is a question of fact.

(3.) The delivery of the key of the place where the goods are may, by agreement, operate as a delivery of the goods.

(4.) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person attorns to the buyer; provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods. (5.) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour.

(6.) Unless otherwise agreed the expenses of and incidental to delivery must be borne by the seller.

33. Delivery of wrong quantity.-(1.) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered he must pay for them at the contract rate.

(2.) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.

(3.) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, and the buyer cannot sever the goods included in the contract from the other goods without incurring trouble or expense, he may reject the whole.

34. Instalment deliveries.—(1.) Unless otherwise agreed the buyer of goods is not bound to accept delivery thereof by instalments.

(2.) Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract, and the